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2009: The Year in Review

From Washington Lawyer, February 2010

By Gene Shipp and Joe Perry

The year 2009 is in the books and, looking back, there seems to be a common thread. Decisions issued by the District of Columbia Court of Appeals in the past year demonstrate that an attorney must exercise the utmost care when dealing with money.

Perhaps most notably in 2009 was the court holding that “when an attorney receives payment of a flat fee at the outset of a representation, the payment is an ‘advance[] of unearned fees’ and ‘shall be treated as property of the client…until earned unless the client consents to a different arrangement.’”[1] The court thereby rejected the idea that flat fees belong to the attorney upon receipt, and clarified what was once a murky area of the law.

Attorneys also were reminded of the dangers of misappropriation. In one matter, the court disbarred an attorney for settling a case without client approval, forging a client’s signature on a settlement check, and intentionally misappropriating a substantial part of the settlement for his own use.[2] In another matter, the court found that an attorney’s pattern of conduct manifested “an unacceptable disregard for the welfare of entrusted funds” and ordered disbarment, with reinstatement conditioned upon fulfillment of restitution obligations recommended by the Board on Professional Responsibility.[3] In a third matter, the court ordered an attorney disbarred for intentionally misappropriating client funds while serving as a court-appointed conservator.[4]

Unfortunately, the underlying conduct in four more of the court’s money-related disciplinary matters also rose to the level of federal crimes. In each of these cases, the crimes charged involved moral turpitude per se, and disbarment was, therefore, mandatory under D.C. Code § 11-2503(a).

In one instance, an attorney was convicted of bankruptcy fraud in violation of 18 U.S.C. §§ 152(1) and (2).[5] In another instance, an attorney was convicted for conspiracy to commit mail fraud and wire fraud, as well as aiding and abetting in mail fraud.[6] The attorneys in both of these matters were disbarred.

In the third matter, the court disbarred an attorney after he pleaded guilty to one count of conspiracy to commit an offense against the United States, specifically bank fraud.[7] In the fourth matter, an attorney pleaded guilty to one count of conspiracy to commit bribery of an elected official for his alleged role in a scheme to pay a $40,000 bribe to a state court judge for a favorable ruling. He was disbarred by the court.[8]

As one might expect, not all of the court’s cases were about money. This past year, the court also suspended an attorney for 30 days for the mishandling of an asylum matter and misleading his client regarding the status of his case.[9] In another matter, the court imposed another 30-day suspension, with reinstatement conditioned on a demonstration of fitness, for an attorney’s failure to respond to the Office of Bar Counsel’s lawful demand for information, failure to comply with a board order, and for conduct that seriously interfered with the administration of justice.[10] Finally, the court disbarred an attorney based on a pattern of misconduct, including violations of Rules 1.3(b)(2), 1.7(b)(4), 1.8, 1.16(a)(1), 3.1, 3.2(a), 3.3(a)(1), 3.4(c), 3.5(c), 5.5(a), 8.1(b), 8.4(c), 8.4(d), and D.C. Bar Rule XI, § 2(b)(3).[11]

In addition to these original matters, the court also imposed discipline in multiple reciprocal disciplinary matters. The court also approved five petitions for negotiated discipline, which resulted in sanctions ranging from public censure to one-year suspension, with reinstatement conditioned on a demonstration of fitness to resume the practice of law.[12]

Finally, the court issued nine orders disbarring former members of the D.C. Bar by consent.

While these numbers could be compared favorably to the 92,000-plus members of the Bar, each matter represents an instance where a client was hurt and/or the reputation of the Bar was tarnished. Less is always better.

Gene Shipp is bar counsel for the District of Columbia. Joe Perry is a senior staff attorney in the Office of Bar Counsel.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE HARRY TUN. Bar No. 416262. November 24, 2009. On remand from the D.C. Court of Appeals on the issue of the “appropriateness of a negotiated discipline,” the Board on Professional Responsibility recommends that the court reject the proposed sanction (a nine-month suspension followed by a one-year period of probation, with 90 days of the nine-month suspension suspended, provided that Tun complies with specific conditions stated in the negotiated disposition). The board stated that although the proposed sanction was within the lower range of precedent for the misconduct involved, it does not believe the sanction adequately reflects the number of violations, or the extended time period during which the violations took place. The board stated that a more appropriate sanction would be a suspension of 18 months, with the last six months (1) stayed in favor of a one-year probation subject to the terms of the probation in the negotiated disposition, and (2) conditioned on his compliance with the terms of the probation. If Tun fails to complete the probation, the board recommends that fitness be imposed. Tun violated Rules 1.5(a), 1.5(f), 3.3(a)(1), 8.4(c), and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

IN RE ROBERT W. JOHNSON II. Bar No. 945170. November 25, 2009. The D.C. Court of Appeals accepted Johnson’s petition for negotiated discipline and suspended him for 30 days for violation of Rule 1.15(c). Specifically, Johnson distributed from his trust account funds that had been advanced to him by a client at a time when persons claiming a bona fide interest in those funds disputed his authority to distribute them.

Interim Suspensions Taken by the District of Columbia Court of Appeals

IN RE DERWIN T. BRANNON. Bar No. 480442. November 2, 2009. Brannon was suspended on an interim basis based upon discipline imposed in South Carolina.

IN RE KARL W. CARTER JR. Bar No. 113449. November 16, 2009. Carter was suspended on an interim basis pursuant to D.C. Bar Rule XI, § 9(g), based upon the Board on Professional Responsibility’s August 5, 2009, recommendation of an 18-month suspension with fitness.

IN RE EDWARD M. FINK. Bar No. 96040. November 2, 2009. Fink was suspended on an interim basis based upon discipline imposed in New Jersey.

IN RE TOLLY A. KENNON III. Bar No. 466643. November 19, 2009. Kennon was suspended on an interim basis based upon discipline imposed in North Carolina.

IN RE SHELLEY A. STASSON. Bar No. 374174. November 18, 2009. Stasson was suspended on an interim basis based upon discipline imposed in Michigan.

IN RE RICHARD LLOYD THOMPSON II. Bar No. 448816. November 18, 2009. Thompson was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE BRUCE H. TROXELL. Bar No. 326827. November 19, 2009. Troxell was suspended on an interim basis based upon discipline imposed in Virginia.

IN RE LUCILLE SAUNDRA WHITE. Bar No. 463929. November 9, 2009. White was suspended on an interim basis pursuant to D.C. Bar Rule XI, § 9(g), based upon the Board on Professional Responsibility’s August 20, 2009, recommendation of a six-month suspension with fitness.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE ALAN J. LANDER. Bar No. 973604. October 28, 2009. The Office of Bar Counsel issued Lander an informal admonition. While representing a client in a personal injury matter, Lander failed to (1) provide competent representation, (2) serve a client with skill and care that is generally afforded to clients by other lawyers in similar matters, (3) represent a client zealously and diligently within the bounds of the law, (4) act with reasonable promptness, (5) explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, and (6) make reasonable efforts to ensure that a nonlawyer’s conduct (over whom Lander had direct supervisory authority) was compatible with the professional obligations of the lawyer. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(b), and 5.3(b).

IN RE DAVID W. SANFORD. Bar No. 457933. October 30, 2009. The Office of Bar Counsel issued Sanford an informal admonition for failing to abide by his client’s decision concerning the objectives of the representation, failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, and dividing a legal fee with another attorney without advising the client in writing of the contemplated division of responsibility, or of the effect of the association on the fee to be charged, while representing a client in an employment discrimination administrative claim. Rules 1.2(a), 1.4(b), and 1.5(e).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted on the D.C. Bar Web site at www.dcbar.org/discipline. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/internet/opinionlocator.jsf.